On appeal from the Supreme Court.
For the plaintiff-respondent, Labrecque, Canzona & Combs (Theodore D. Parsons, of counsel).
For the defendant-appellant, Durand, Ivins & Carton (J. Victor Carton, of counsel).
The opinion of the court was delivered by
BURLING, J. This is an action at law sounding in tort, the gravamen of which is the alleged actionable negligence of the defendant-appellant.
The case involved the right of a private nurse, caring for a patient at the Fitkin Hospital, to recover damages from the hospital for injuries sustained by her as the result of a fall due to the alleged negligence of an employee of the defendant-appellant. It was tried before Circuit Court Judge Robert V. Kinkead, without a jury. At the conclusion of the plaintiff's (respondent's) case, defendant-appellant moved for a nonsuit upon the ground that the plaintiff was the recipient of the benefactions of the appellant hospital or a beneficiary of the appellant hospital and that a charitable institution was not liable as such for the negligence of its servants. This motion was denied. The appellant hospital offered no testimony. The appellant having elected to present
no evidence, a motion was thereupon made for a directed verdict of no cause for action upon the same grounds. This motion was denied. Thereupon the court found a verdict in favor of the plaintiff against the defendant in the sum of $2,500.
The only grounds of appeal filed are the failure of the trial judge to grant a motion to nonsuit and at the close of the reception of evidence to grant a motion for a directed verdict of no cause for action.
The question of liability of a charitable institution to respond in damages for negligence of its servants has been many times before the courts. Conflict exists among the courts of the several states concerning such liability. The subject has been the cause of prolific judicial opinion. It is one upon which there has been and is not only a conflict of decisions among the courts, but also a remarkable diversity of opinion among the courts which agree in their ultimate decision as to the reason or ground for so deciding. Andrews v. Young Men's Christian Association of Des Moines (Supreme v. Young Men's Christian Associdation of Des Moines (Supreme Court, Iowa, 1939), 226 Iowa 374; 284 N.W. Rep. 186; President and Directors of Georgetown College v. Hughes (United States Circuit Court of Appeals, District of Columbia, 1942), 76 U.S. App. D.C. 123; 130 Fed. Rep. (2 d) 810; Gregory v. Salem General Hospital (Supreme Court, Oregon, 1944), 175 Ore. 464; 153 Pac. Rep. (2 d) 837.
There are two rules: One is known as the "absolute or unqualified" immunity rule and the other is known as the "qualified" immunity rule. Various reasons are given by the courts in support of the respective rules applied by them. Among those reasons are "public policy," "trust fund theory," "waiver theory," " respondent superior theory." The subject is discussed in 10 Fletcher's Cyc. Corp. (Perm, ed.) and among others in the following cases: Roosen v. Peter Bent Brigham Hospital, 235 Mass. 66; 126 N.E. Rep. 392; Vermillion v. Women's College of Due West (Supreme Court, S.C., 1916), 104 S.C. 197; 88 S.E. Rep. 649; Schumacher v. Evangelical Deaconess Society of Wisconsin, 218 Wis. 169; 260 N.W. Rep. 476."
A chronological review of the pertinent New Jersey cases is found in the opinion in the case of Fair v. Atlantic City Hospital (Atlantic County Circuit Court, 1946), 25 N.J. Mis. R. 65, and in the opinion of the court below (25 Id. 311). They are: D'Amato v. Orange Memorial Hospital (Court of Error and Appeals, 1925), 101 N.J.L. 61; Boeckel v. Orange Memorial Hospital (Supreme Court, 1932), 108 Id. 453; affirmed (Court of Errors and Appeals, 1933), 110 Id. 509; Simmons v. Wiley M.E. Church (Court of Errors and Appeals, 1933), 112 Id. 129; Kolb v. Monmouth Memorial ...